South Dakota Museum Wins Court Battle for Iconic Elvis Guitar

VERMILLION, S.D. (CN) – A small college town on the South Dakota prairie may not seem the most likely home for a guitar played by Elvis Presley on tour, but that’s where it will stay thanks to a museum’s victory after a three-year court battle with a private collector.

“One point I keep making is how important it is that the instrument will remain here with us in a public institution,” National Music Museum director Dr. Cleveland Johnson said in an interview. “To have something like the Elvis guitar, which is such an iconic, mass-market popular culture thing, to have that in a public institution where anyone can come seven days a week and see it is just a wonderful treasure that we’ve retained.”

Damage on guitar that put it out of use on Feb. 14, 1977.

The King of Rock and Roll retired his Martin D-35, which he played on his 1976-77 tour, on Valentine’s Day of 1977, when mishandling onstage caused it to crack. He gave the guitar to a fan, which started its journey through private ownership.

In February of 2013, Robert Johnson, a music enthusiast and collector, sold the guitar to the National Music Museum in Vermillion, South Dakota, as part of a “package” that also included a Gibson Korina Explorer guitar once owned by The Who’s John Entwistle. The museum paid $250,000 to get both guitars, along with other instruments.

But later that year, the museum started receiving phone calls from Larry Moss, another private collector. Moss also claimed ownership rights to the guitar.

U.S. District Judge Karen Schreier, the judge presiding over the case, outlines the history of the dispute in her 11-page opinion.

In 2008, friends Robert Johnson and Larry Moss entered into an agreement for Moss to purchase four guitars, including the Martin D-35 and two others owned by Elvis, for $120,000. Moss made a partial payment and received two of the guitars. He did not take immediate possession of the Martin because it was on loan to the Rock ‘n’ Soul Museum in Memphis, Tennessee.

When the loan expired in 2009, Robert Johnson and Moss did not get in touch about delivering the guitar to Moss. The relationship between the men deteriorated, and in 2010 Robert Johnson offered the Martin D-35 to the National Music Museum.

Cleveland Johnson said Robert Johnson (no relation) attempted to resolve the dispute about ownership of the guitar “quietly.” First, he offered Larry Moss a different guitar owned by Elvis as compensation, and then he tried to convince the museum to accept another guitar connected to Elvis.

“It was a movie guitar that had just been used as a prop on a set,” Cleveland Johnson said of the second guitar offered to the museum in exchange for the Martin D-35.

The museum’s stringed instruments curator, Arian Sheets, explained in an interview why this was not an acceptable trade.

“Stage-played Elvis guitars are unbelievably rare, and this one had been used for a couple years,” she said. “There are pictures of him with it, so it was verifiable.… For our visitors, the whole point of having an instrument like this is to give them an impression of something tangible, a connection with the artist…. Seeing a picture of him playing it and seeing the instrument there and seeing the strap that had wrapped around him, it’s very evocative. And that’s kind of the point of having a celebrity instrument. The value to our visitors is really based on how close the connection is with the celebrity.”

The museum filed suit to protect its rights to the guitar in 2014. “We pre-emptively initiated the lawsuit so it would be settled here in South Dakota,” Cleveland Johnson said. “This legal case cost us an awful lot of money, so for the people of South Dakota, we invested a lot in making this accessible to the public—not only by acquiring it in the first place, but by defending it in court. We are just a little nonprofit when you look at it on paper, and to fight something like this you do feel a little bit like David and Goliath.”

That lawsuit paid off in the museum’s victory on Monday.

“The threshold issue in this case is whether Moss was ever the owner of the Martin D-35 guitar,” Judge Schreier wrote in her opinion. “If Moss was never the owner of the guitar, then he is unable to prevail in this litigation.”

Photo credit: National Music Museum

Schreier determined that, despite whatever agreement Robert Johnson and Moss made privately, Moss had never owned the guitar. “Here, Johnson never physically delivered the Martin D-35 to Moss. Moss never had physical possession of the Martin D-35. Because Johnson never delivered the guitar and Moss never had possession of it, Moss never acquired title to the Martin D-35. Although Moss could have sought specific performance as a remedy for Johnson’s breach of the February 2008 contract between Moss and Johnson, Moss waited until February 2014 to take legal action. But title to the Martin D-35 had already passed to NMM in 2013.”

“We are elated to receive this judgment on the guitar,” Cleveland Johnson said. “No museum ever wants to find itself in a costly legal dispute over anything in its collection – much less in jeopardy of losing one of its most prized pieces.”

Although the museum displayed the guitar while the case was pending, it refrained from advertising it or drawing attention to its possession. “That was part of the reason this case needed winning; that was a loss for us during that time,” Patricia Bornhofen, the museum’s communications manager, said.

“We didn’t want to invest in an object that we wouldn’t be able to present to the public in the future,” Sheets added.

The litigation also had Cleveland Johnson pondering larger questions related to museum acquisitions. “We followed the best practices and professional standards of our accrediting organization—the American Alliance of Museums—when we acquired this instrument,” he said in an email. “More than ever though, we are conscious of the larger question of provenance that the whole museum community grapples with. It is more critical than ever to know the ownership history of objects before they enter museum collections — not only for the future educational value of that information — but for legal, ethical, and moral reasons.”

Moss’ attorney, Randy Fishman with Ballin, Ballin and Fishman in Memphis, said his team is deciding whether to appeal the ruling.

The National Music Museum was established in 1973 and is located on the campus of the University of South Dakota in Vermillion (pop. 10,692). It preserves a collection of over 15,000 instruments, with 1,200 on display—including the world’s oldest cello and harpsichord, guitars owned by Johnny Cash and Bob Dylan, and a limited edition “presidential” tenor saxophone made especially for Bill Clinton.

Cleveland Johnson says he hopes people will celebrate with them by visiting the museum to see the Elvis Martin D-35 in person.

“South Dakota is a small population state, and there really aren’t a lot of places where the citizens can go around and see art objects,” Sheets added. “And if they come here they can see everything from an Elvis guitar to a violin made in the 1500s.”